The Privileges of Burghs and Burgesses. - Monopolies.
The Maltmen of Glasgow v. Robert Tenant
Date: 10 February 1749 Case No. No 65.
The maltmen being in Glasgow a corporation, it was found, that au inn-keeper might make malt for his own use; but if he distilled or brewed it, and sold the ale or spirits, he must enter with the incorporation.
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The visiter and collector of the maltmen calling of Glasgow, pursued Robert Tenant, inn-keeper there, before the Magistrates, and obtained him to be fined in L. 20 Scots, for making malt without being entered with the calling: Which he suspended; for, that by act 29. Parliament 1567, ratified by act 15. Parliament 1669, it is statute, that maltmen should be no craft nor have a deacon.
The Lord Ordinary, 17th November 1748, “sustained the reason of suspension founded on the act of Parliament, notwithstanding of a ratification passed in the Parliament 1672, founded on by the chargers.”
Pleaded in a reclaiming bill: There was a decreet arbitral pronounced 1605, betwixt the Merchants and Trades of Glasgow, by which the constitution of the town was settled as it subsists to this day; part whereof is, that there are six maltmen, members of the convener's house, that they are capable of being chosen deacon convener, who is a counsellor ex officio, and of being trades bailies: By this agreement the maltmen and mealmen are allowed to have a visiter, and the burgesses who use these employments are obliged to pay them certain small upsets. It was approved by the magistrates, recorded in the council-books of the town, and ratified in Parliament 1612. On occasion of the statute 1669, the calling applied to Parliament, and obtained a ratification of their privileges 1672; which they have possessed ever since, and got confirmed by the bishop 1684. In 1677, magistrates settled the upset at L. 100 Scots.
Answered: The ratifications ought not to derogate from public law; and so was found in the House of Peers, in the competition for the honour of Earl of Stair, which was resigned, and granted again by patent to the then Earl, and any person he should name, by a writ under his hand; and failing that, to the second son of Colonel William Dalrymple; ratified in Parliament: In which case the House of Peers preferred the substitute to the Earl's nominee. See Personal and Transmissible.
The Lords, 26th January 1749, repelled the reasons of suspension founded on the acts of Parliament 1567 and 1669, in respect of the ratifications 1612 and 1672, founded on by the chargers, and the possession following thereon; and found that the maltmen calling of Glasgow were a subsisting legal corporation: And refused a bill and adhered.
Act. Lockhart & Brown.Alt. W. Grant.Clerk, Murray.
22d February 1750.
The visiter and collector of the maltmen calling in Glasgow, pursued Robert Tenant, inn-keeper, there, before the Magistrates, and got him fined for making malt for sale, not being one of the calling.
He suspended; for that he made no malt for sale, but consumed the whole in his own house, in ale and spirits, which he brewed and distilled for the service of his guests.
Answered: The suspender is still a seller of malt, as he sells his ale and spirits, and does not consume them in a private family.
Observed, That the maltmen are subject to the inspection of the visiter: And it cannot be said he could visit, and put a price on the suspender's malt.
The Lords, 20th November 1749, ‘found, That Robert Tenant, in respect he did not make malt for sale, was not obliged to enter with the incorporation.’
On bill and answers, whereby it appeared he had sold some spirits;
The Lords adhered with regard to the malt made into ale and spirits consumed in the house; but found that the suspender behoved to pay duty as a maltster, for the malt made by him, and distilled into spirits, and sold in gross abroad: And that if he continued to make malt, and use it in that manner, he behoved to enter into the society of maltmen.
Reporter, Drummore.Act. W. Grant.Alt. Lockhart & Ferguson.Clerk, Murray.
Fol. Dic. v. 3. p. 107. D. Falconer, v. 2. No 55. & 132. p. 53. & 150.
